Writ of Mandamus

The legal term writ of mandamus refers to an order by a court to a lesser government official to perform an act required by law, which he has refused or neglected to do. This type of court order is a remedy that may be sought if a governmental agency, public authority, or corporation in service of the government, fails or refuses to do its public or statutory duty. To explore this concept, consider the following writ of mandamus definition.

Definition of Writ of Mandamus


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  1. A written order from a higher court to a lower court, or to a government official, office, or corporation, commanding that a specified thing be done.


Latin (Mandamus: “we order”)

What is a Writ of Mandamus

This complex-sounding legal term actually refers to a somewhat uncommonly used legal maneuver in which a judge, usually at the appellate court level, issues a written command for an individual or entity to perform its public duty, or its duty according to the law. Such an issue might come up if a public official tasked with a specific duty, such as a county clerk tasked with issuing marriage licenses, refuses to do his duty. The wronged individuals may file a civil lawsuit, asking the court to order the government official to do his duty.

Writs of mandamus are not used often, as the courts prefer matters to make their way through the legal system normally. In certain circumstances, however, the need to act quickly outweighs the desire for the system to roll along at its routine pace.

For example:

Leyla, whose ex-husband was an abusive alcoholic, successfully convinced the court in her home state of Nevada that she should have sole legal and physical custody of the couple’s two children, with the father being allowed only supervised visitation at an agency tasked with such supervision. The court’s ruling on the matter stemmed partly from the fact that the children’s father had a significant amount of liquid assets, and he had threatened several times to simply take the kids out of the country.

Two years later, Leyla moves to California to accept a good job where they can be closer to her family. Leyla counts on her custody order to be effective until there is a need to seek a change by the court in her new state. When the father arrives in town only three months later, he files a custody petition in the local court, requesting 50/50 custody of the children. Leyla and her attorney are both dismayed when the family court judge orders unsupervised visitation with the father on weekends until the matter can be decided permanently.

Leyla’s attorney reminds the judge that, by law, the court must enforce the custody order of another state, but he orders her to sit down. In this case, waiting while Leyla’s attorney files a motion, and the child custody case follows the usual track through the system may be too late, as the father has both the means and the prior intent to take the children out of the country.

Leyla’s attorney quickly prepares a petition for writ of mandamus, clearly outlining the urgency and danger of the judge not enforcing the custody order from the children’s home state. The petition explains the father’s intent to take the children away from their mother, and his ability to carry out that threat. The attorney then files the petition through emergency channels to the appeals court.

After reviewing the petition for writ of mandamus, the appeals court judge issues a writ of mandamus ordering the family court judge to uphold the law by recognizing the existing custody order. The following court day, the family court judge must comply with the writ of mandamus, and order the previous custody order be upheld. Because this would resolve any immediate crisis, the family can then move through each stage of the family court legal system. In doing this, the best interests of the children can be determined and addressed.

Purpose of Mandamus

The purpose of mandamus is to provide a prompt resolution to a defect of justice. This is applied to situations in which a person has a specific right, but no legal remedy has been provided for enforcing that right. A writ of mandamus, also known as a “writ of mandate,”  does not address the prospect of injury or loss caused by the failure of a government official or entity to act, but provides an immediate legal remedy in the form of a direct order to the official or entity to do its duty. In this way, a writ of mandamus is an “equitable remedy,” left to the discretion of the court.

Types of Mandamus

Depending on the circumstances of the matter, a court may order any of three types of mandamus. These include:

  1. Alternative Mandamus – an order often issued when an application for writ of mandamus has been made. The alternative mandamus allows the defendant to either perform the action demanded, or appear before the court to give good reason for not performing it.
  2. Peremptory Mandamus – a categorical command to the defendant to perform the act in question, with no choice or alternative given. The peremptory mandamus is issued when the defendant failed to both perform the act, and to appear before the court as ordered in the alternative mandamus.
  3. Continuing Mandamus – an order issued to a lesser government official, or a lower authority, to perform its duty promptly for an unspecified period of time, in order to prevent a miscarriage of justice.

Legal Requirements for a Petition for Writ of Mandamus

A person requesting a writ of mandamus must be able to show the court that he has a legal right to force the government agency or public servant to perform the specified action, or to refrain from doing a specified act. That duty must be a duty of public nature, and it must be crucial, rather than discretionary. It is unlikely that the court will issue a writ of mandamus if relief can be obtained through other means available to the petitioner, such as an appeal.

Writ of Mandamus Denied to Tech Giant Apple

In 2012, EON Corp., a company based in Plano, Texas, filed a civil lawsuit against Apple, Inc. in the Federal District Court, for the Eastern District of Texas, claiming the tech giant had infringed on four of EON’s patents in the manufacture of its iPads and iPhones. Apple, based in northern California, used processing chips, the subject of the lawsuit, manufactured by Qualcomm and Intel, which companies are also based in California.

It quickly became clear to Apple that having witnesses from these important entities appear, not only at trial, but for pre-trial depositions and other activities, in Texas would be a logistical problem. Although EON was within its rights to file the lawsuit in the district in which its corporation is based, Apple petitioned the court for the Eastern District of Texas to transfer the case to the Northern District in California.

The court denied Apple’s request, saying that, because Apple failed to include enough specific information about witnesses and other facts that would support its claim of hardship in having the trial in Texas. The judge refused to allow Apple to amend its petition, meaning he would not allow Apple to provide additional information after his decision had been made, saying the information should have been presented in the original petition for writ of mandamus.

Apple then filed a petition for writ of mandamus with the U.S. Court of Appeals for the Federal Circuit, asking the appellate court to order the District Court to transfer the case. This appellate court’s job was to determine, not whether there was merit to transferring the case, but whether the District Court had so clearly abused its discretion “that refusing transfer would produce a ‘patently erroneous result’.”

The appellate court went on to express that it too was bewildered by Apple’s failure to identify witnesses who would be required to travel great distances to Texas, or to provide other evidence that holding the trial proceedings in Texas posed a significant hardship. Apple’s request for a writ of mandamus was denied, on the basis that the Eastern District Court of Texas had “simply determined that the evidence … was so general in nature …” that it could find no clear necessity for the transfer, and that the district court had not abused its discretion by denying Apple’s request to provide additional evidence.

Related Legal Terms and Issues

  • Appellate Court – A court having jurisdiction to review decisions of a trial-level or other lower court.
  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Discretion – The power given to the court or a judge to choose among two or more lawful alternatives in making a decision.
  • Equitable Remedy – An action ordered by the court for a party to complete his duties under a contract. This is most often used when an award of money damages cannot sufficiently rectify the damages.

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